Motion for Sanctions – Page 107 – Electronic Discovery Law

Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 3101248 (D. Nev. Oct. 16, 2007)

Dec 01 2007

Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them

Nature of Case: Infringement litigation

Electronic Data Involved: Servers

Network Sys. Architects Corp. v. Dimitruk, 2007 WL 4442349 (Mass. Super. Ct. Dec. 6, 2007)

Dec 01 2007

Key Insight: Where former employee admitted using file shredder program on his NSA-issued laptop before returning it, and evidence showed use of file shredder program on competitor-issued laptop computer, court found defendants? conduct was ?egregious? and amounted to spoliation but denied plaintiff?s request for entry of default judgment; court instead ordered production of computer hard drive for further examination, dismissed defendants? counterclaims, and ordered defendants to pay attorneys? fees and expenses incurred as a result of defendants? misconduct

Nature of Case: Seller of computer hardware and software sued former employee and competitor for misappropriation of trade secrets, unfair competition and related claims

Electronic Data Involved: Laptop computers

Lamb v. Maloney, 850 N.Y.S.2d 138 (N.Y. App. Div. 2007)

Dec 01 2007

Key Insight: Trial court did not err in denying without prejudice plaintiff?s motion, based on spoliation of evidence, to strike defendants? answers or preclude defendants? use of office records to support their defenses; however, court did err in not granting alternative relief requested, i.e., compelling additional discovery, including depositions of certain witnesses, production of records, and inspection of computers, since such additional discovery was reasonably calculated to produce relevant and material evidence and defendants failed to demonstrate any prejudice as a result

Nature of Case: Medical malpractice

Electronic Data Involved: Office computer hard drive and information regarding its destruction

Ameriwood ind., Inc. v. Liberman, 2007 WL 5110313 (E.D. Mo. July 3, 2007)

Dec 01 2007

Key Insight: Where defendants used “Window Washer” disk scrubbing software on hard drives just days before they were to be turned over to forensic expert, and also performed “mass deletions” of electronic files, court found that defendants’ intentional actions evidenced a serious disregard for the judicial process and had prejudiced plaintiff; court entered default judgment in favor of plaintiff and shifted to defendants plaintiff’s costs, attorney’s fees, and computer expert’s fees relating to motions for sanctions and forensic imaging and recovery of defendants’ hard drives; jury trial to proceed solely on issue of plaintiff’s damages

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drives

Autotech Techs. Ltd. P?ship v. Automationdirect.com, Inc., 2007 WL 2746650 (N.D. Ill. Sept. 17, 2007)

Dec 01 2007

Key Insight: Where defendant argued that extracting requested information regarding 56,000 to 60,000 customer invoices from computer system would cost as much as $80,000, and alternative method for extracting information proposed by plaintiff was unsuccessful, court held parties to their prior agreement and determined that reasonable allocation was for plaintiff to pay 62 percent and defendant to pay the remainder; court further ordered defendant to provide proof of actual cost and proof of actual payment and stated that, if defendant is able to extract information for less than $80,000 or if parties arrive at different cost-shifting formula, that will control

Nature of Case: Trademark infringement

Electronic Data Involved: Customer information stored in database

Self v. Equilon Enters., LLC, 2007 WL 427964 (E.D. Mo. Feb. 2, 2007)

Dec 01 2007

Key Insight: In order issued after parties’ status hearing on production of electronic documents, court recounted history of discovery conferences and orders addressing defendants’ production, including court’s prior order directing defendants to produce all emails tagged by the search term “transfer price” whether deemed relevant or not after completing a privilege review, and concluded that, since plaintiffs had not shown that need for further electronic discovery outweighed burdens and costs of retrieving and producing such information, and had not shown that defendants were withholding or ?cherry picking? relevant emails, plaintiffs would bear the costs of all additional email searches, if any

Nature of Case: Breach of contract

Electronic Data Involved: Email

Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 2007 WL 879683 (D. Nev. Mar. 20, 2007)

Dec 01 2007

Key Insight: Court ordered defendants to organize and label documents to correspond with discovery requests, or provide an index, and to submit declarations by qualified computer technicians or forensic experts setting forth specific details of any lost or destroyed data or damaged hard drives; court reserved the option to appoint a neutral computer forensic expert as a special master to investigate and assess any claim by defendants that their computer servers or hard drives were damaged during the seizures or that electronic records were lost or destroyed

Nature of Case: Infringement litigation

Electronic Data Involved: Electronic documents, hard drives

Bishop v. Toys ?R? US-NY, LLC, 2007 WL 2042913 (S.D.N.Y. July 13, 2007)

Dec 01 2007

Key Insight: Overruling plaintiff’s objection that magistrate judge’s sanctions order did not go far enough and should have required defendant to retain a computer forensic expert to examine surveillance equipment to determine whether deleted images were recoverable, court found that order was neither clearly erroneous nor contrary to law since defendant had produced affidavit of individual who personally installed and serviced the surveillance system who stated that he inspected the surveillance data system and determined that the images were not recoverable

Nature of Case: Customer asserted federal civil rights claims arising from his detention by store security guards

Electronic Data Involved: Surveillance video

Paris Bus. Prods., Inc. v. Genisis Techs., LLC, 2007 WL 3125184 (D.N.J. Oct. 24, 2007)

Dec 01 2007

Key Insight: Where plaintiff submitted photographs of defendant?s computers showing that hard drive from one computer had been tampered with and that hard drives for other computers were missing altogether, and defendants did not oppose substance of sanctions motion, court found that plaintiff had established the four requirements necessary for spoliation inference: (1) evidence in question was within the party’s control; (2) there was actual suppression or withholding of the evidence; (3) evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that evidence would later be discoverable

Nature of Case: Fraud, breach of contract, unjust enrichment

Electronic Data Involved: Hard drives

Stroupe v. Wal-Mart Stores East, L.P., 2007 WL 3223224 (E.D. Va. Oct. 29, 2007)

Dec 01 2007

Key Insight: Adverse inference instruction not warranted for defendant’s routine destruction of surveillance videotapes created on date of incident; defendant presented evidence that there was no videotape that depicted the subject area where the incident occurred and plaintiff did not show that destroyed videotapes contained any images or information relevant to any issue at trial

Nature of Case: Personal injury

Electronic Data Involved: Surveillance videotapes

Tag:Motion for Sanctions